Gene Patents and the ACLU

There is a very interesting article in the New York Times written by John Schwartz about a lawsuit over a patent. The patent is directed toward a specific gene, and a test to determine the presence of that gene. The gene is associated with breast cancer and the link to ovarian cancer. Myriad Genetics owns the patent for the test, which means they did all the research to develop and validate the test. Now people are complaining because the test is not as accessible as they would like. A lawsuit is the result claiming that the patent is invalid.

I have a few thoughts on this article. First, I suspect the language is a little loose because patent invalidity is a separate question than unpatentable subject matter. I have not looked at the complaint in this case, but I suspect the claim is that the subject matter (a human gene) is not patentable. I think the test developed to determine the presence of the gene is certainly patentable. As for the gene itself, that should not be patentable, but the article hints at processes used to purify samples of the gene and those processes should be patentable. I understand the frustration from people who want to get the test done, but filing a lawsuit attacking the patent does not seem like the best route. I think the best evidence of this is the fact that the ACLU gets involved. The article only mentions that the ACLU seems to claim that the matter includes some patent law, but then appears to be more of a First Amendment issue because the patent deals with "knowledge." That seems like a huge leap in logic; how does "knowledge" fall under a First Amendment free speech claim? Also, leave it to the ACLU to take a patent law question and turn it into a question of "fundamental" free speech rights. This is a classic example of what happens when the only tool you have is a hammer, everything looks like a nail. The only thing the ACLU knows is arguing for "fair" results based on supposed, claimed "rights" they find in the Bill of Rights. I am sorry there are people that would like to have the test done, but do not seem to have the opportunity to do that. However, that does not mean the patent laws should change based on this emotional, fairness reaction.

Control of IP

PC World's Christopher Breen has a nice article about an upcoming decision in a California district court regarding copyrights and the movie industry. It is a clear reminder of how important it is to control intellectual property, as evidenced by how tenaciously the movie industry wants to maintain that control. I hope RealNetworks is able to prevail in this case. It sounds like the movie industry wants to shut down RealNetworks' technology just because it is possible that it could be used for an illegal purpose. You do not outlaw hammers just because someone may use a hammer for an illegal purpose.

Lighter Side

This post will be somewhat on the lighter side. The USPTO is announcing its National Trademark Expo. I am not a big fan of the newer, more modern, U.S. Air Force logo. I like the old wings better because they looked like wings.

Copyright Pirates

At least some pirates appear to be getting justice. This report by Niklas Magnusson explains how a Swedish court ruled that copyright pirates were ordered to pay damages in relation to their website that facilitated illegal downloading of music. I am glad to see the music industry obtain justice against these companies that promote copyright infringement, and even more glad the industry has stopped trying to go after the individual consumers.

Trademark Enforcement

This is an interesting article about trademark enforcement. Obviously, trademarks are very important.

Patent Reform

The Patent Reform Act has been approved by the Senate Judiciary Committee, and Sen. Hatch does not like it. Part of me is glad that we have a senator in Utah that appreciates intellectual property, and the other (bigger) part of me wishes he did not get just about everything wrong when it comes to intellectual property. Making it more difficult for a court to find a patent claim invalid is a terrible idea. The standard is already raised to "clear and convincing" error and Sen. Hatch wants to add that it was intentional? That would not be right at all. From the other stuff I have read, I am not so sure the Patent Reform Act is such a bad idea.

Patent Reform

Reuters reports that the Senate Judiciary Committee is close to a compromise on the Patent Reform Act. From what is reported, a compromise does sound close and relatively promising. Although I would have to agree with the representative from the pharmaceutical industry: we will have to wait and see what the actual language of the bill would say. That is the only time a good analysis can be provided.

Patent Reform

The Wall Street Journal reports that the Patent Reform Act is in the Senate again. Not long ago, the Patent Reform Act was supposed to be a done deal, but they are still considering some changes, including the hotly contested damages provisions. I think this is still going to take a while. A compromise is possible, but it will take some time to find an acceptable middle-ground.

Trademark Value

Intellectual property can certainly be very valuable and this story in the Wall Street Journal is just another example. The "Budweiser" trademark is valuable enough that these two breweries have been fighting about it for a very long time. Even though the Czech brewery won this round of the battle, I doubt the war is over.

Patent Reform

The Patent Reform Act is having some trouble getting passed, and all because of the concern over limiting damages for infringement. After considering this, I would have to say that limiting damages is a bad idea. There are too many companies that could then make and sell infringing devices that would just figure the cost of damages into the cost of the device. Patent infringement would be just another cost of doing business. This is dangerous ground because not only does it allow for the much greater possibility of patent infringement, but those companies that innovate will be less inclined to innovate because they will not be able to protect their invention to the fullest extent. All in all, the Patent Reform Act is not worth the problems.

Patent-Judge Pilot Program

The House of Representatives has passed a bill to create a pilot program that would help give district court judges more expertise in patent cases. I certainly know plenty of patent attorneys that think judges need all the help they can get, but I do not happen to agree with that. The judges I have seen in the court want to understand patent law and get the principles down pretty well. This program will be a great aid for those that wish to participate, but I do not foresee huge changes.

Patent Reform

According to Reuters, Sen. Hatch is claiming that patent reform is just around the corner. This may not be a bad idea, but I would have to say that the bad outweighs the good in this instance. The good is that the Patent Reform Act would make it more difficult to find inequitable conduct against a patent practitioner. The positive effects of this will hopefully include promoting more open discussions between the PTO and patent practitioners because the patent practitioner is not as worried about inequitable conduct claims. The bad news for the act would be the limitation in patent infringement damages. This is a provision that will only help big, electronic, tech companies because with damages limited to a certain amount, they can choose to just infringe a patent as opposed to actually negotiate a fair license or innovate around the patent. This provision would help many more companies than it would help, and quite likely cost many employees at those companies their jobs. Being a resident of Utah, I understand that Sen. Hatch has a great interest in intellectual property matters. I just wish he really understood them a little better.

Cybersquatting

Reuters reports on the increased number of cybersquatting cases. This is not terribly surprising in these economic times because many people will be looking for a way to make some quick, relatively easy money. The big problem for those people looking to make a quick buck is that most cybersquatting cases where a genuine, famous trademark is being used by someone else make sure there is no unacceptable use or purpose to the website and are quick to award the trademark owner what they deserve.

Court Watching

This article from Mark Sherman at the Boston Globe is one of many we will see for the next few years. Especially at the beginning of a presidential term, everyone likes to comment on which Justices they think will be leaving the Supreme Court. And it seems like they are mostly wrong every time. Even based on this article, I would say Justice John Paul Stevens is the only Justice likely to retire in Pres. Obama's present term of office. Of course, I could be wrong.

Obama and Copyrights

This will be an interesting case as the AP sues the artist behind the Obama "Hope" posters. I would consider this just more proof that a good idea needs to be protected.

Patent Reform

The attempt to reform the damages in patent infringement litigation is an issue that will not go away soon. Both sides have a lot of money involved and both will be willing to fight this to the end. I do not have a preference for which side ultimately prevails, but I do sense that certain changes will almost certainly be made.

Patent Portfolio

This article by Donalee Moulton discusses the value of patent portfolios, a value certain companies may be overlooking at this time of economic stress. It can be very difficult at a time like this, but there is opportunity in these times. Companies that are aware of the opportunities and understand how to maximize the value of their assets will be able to take advantage of these hidden opportunities.

Bilski Decision

Patently-O has a great round-up of the amicus briefs filed in the Bilski v. Doll case. The Supreme Court should certainly hear this case and clarify the rule in this matter. This is a decision that will have a huge impact on business. The ability to patent software is considered very important by those in the business, which is evidenced by the fact that software patent applications still take quite a while to get through the PTO. I look forward to the Supreme Court's decision.

Patent Rules

According to this report from Reuters, Congress is again trying to reform the patent rules, although this legislation regarding damages for patent infringement does not appear to be related to patent prosecution rules. This will be an interesting argument and it will also be interesting to find out where Congress decides to draw the line regarding calculation of damages. Both sides clearly have a point. Industries that require more components will want less damages for patent infringement because there is a greater likelihood they will be facing multiple patent infringement claims. Drug companies and smaller industries will want the damages to stay the same, if not increase, because almost their entire business depends on one or two patents. I suspect there will be some sort of compromise where no one is completely happy.

Pres. Obama and Biologics

The Associated Press reports that Pres. Obama would like to find a way to streamline the approval process for "generic" biologic drugs. The article does not say anything about shortening the patent term for these drugs, but it does talk about making sure drug companies do not make small changes to patented processes and get additional years of patent protection. I would have to agree with Pres. Obama on this matter because the patent system is designed to allow people to benefit from their invention for a limited time, and that time should not be extended frivolously. If a way can be determined that allows a safe and faster approval of generic biologic drugs, I think that would be great.

In related stories, the market appears to be over-reacting a bit to this news. Biologic drug company stocks appear to be dropping. I will leave it to other, more qualified persons to comment on any possible market trends.

Importance of Advertising

I have often tried to explain to clients and potential clients that a patent may not be the most important part of their strategy to protect and market a product. This article in the New York Times about the "Snuggie" product would seem to support that idea. Clever, memorable advertising will go a long way toward getting customers, and a snappy trademark does not hurt.

AT&T Business Move

Reuters reports that the U.S. Supreme Court has declined recognize a "new" form of anti-trust claim that was brought against AT&T. The reason I find this interesting is that the lower court did recognize the claim and because it seems pretty obvious that what AT&T was doing was simply making it difficult for companies that purchased services from AT&T to then use those services to compete with AT&T. The bottom line is that AT&T can sell its services to whomever it wants at whatever price they want.

Inequitable Conduct

The American Bar Association has submitted its suggestions on reforming the inequitable conduct defense to patent infringement. Congress has at least contemplated eliminating inequitable conduct as a defense to patent infringement in the courts and making inequitable conduct an administrative proceeding in the PTO. The ABA suggests that the courts keep the inequitable conduct defense, but that the standard for proving inequitable conduct be "clear and convincing" evidence. The ABA also suggests it elements for inequitable conduct.

I would agree with the ABA on this matter because the present "scale" determination for inequitable conduct is too difficult for a court to apply. The way the elements are laid out is more familiar and easier to interpret and I think courts will be comfortable applying the standard. I also think the defense should stay in the court so the entire matter can be determined at one time.

None of this changes the fact that patent practitioners will still need to be careful to disclose all material information to the PTO, but hopefully it will decrease the number of claims of inequitable conduct.

Intellectual Property Rights

This article from The Legal Intelligencer provides great insight about intellectual property rights in these uncertain economic times. (Free registration required to view article.) Clients should be aware that due diligence research regarding the various aspects of intellectual property is incredibly important now. Clients should prepare for the worst, but get the requisite due diligence done so the worst is not a surprise.

Manufacturers Send Letter to Obama

The Manufacturing Alliance on Patent Policy recently sent a letter to Pres. Obama. (HT:IP Watchdog) The letter explains that implementing the failed patent reform policies of 2008 would cost manufacturers more money and more jobs. This is not just an indication that the changes to the patent prosecution rules attempted in 2008 were a bad idea. This is also an endorsement of innovation and creativity, even in difficult economic times. Innovation and creativity helps save and create jobs on many levels. Let's hope Pres. Obama listens.

Business Methods and Bilski

The Supreme Court will be making a very interesting decision about the patentability of business methods, including such things as software and financial strategies. The review of the Bilski case will be one of the most watched decisions from the Supreme Court in quite a while, at least for patent attorneys. I hesitate to offer a guess as to which way the Court will go on this because I think this will end up being a relatively close vote, but I think the Court is going to overturn the Federal Circuit's decision. At the very least, it will be interesting to watch.

Patent Filings

It is not a surprise that patent filings are down while the economy is slowing. That is to be expected to a certain degree and coincides with previous experience. However, times of economic difficulty also present a great opportunity to companies that can adapt, and that adaptation is what fuels development of intellectual property. This is actually a great time to be filing a patent application, or trying to protect any other intellectual property, because the company that innovates now will get through the difficult times better, and be better positioned when the economy turns upward.

Marvel Lawsuit

This lawsuit brought by the stockholders against Stan Lee and Marvel Entertainment should be interesting. It seems Marvel comics characters are doing well after a resurgence in the popularity of comic books and movies based on comic book characters. This is a great lesson about the value of intellectual property, and not just patents, but trademarks and copyrights.

Be Ready to Disclose

This New York Times piece about Rambus, Inc. not being able to enforce certain patents because they shredded documents related to the patents should serve as a warning to other companies that have valuable technology protected by patents. Do not destroy the documents associated with the conception of the invention or the prosecution of the patent. The court will not give you the benefit of the doubt, in fact, just the opposite. This goes along with the idea that one of the reasons the Government grants patents is that they expect the inventor to disclose to the public all the relevant, pertinent information about the invention. The lesson is: do not try to retain or hide (or destroy) any information concerning your patented invention or the patent prosecution process.